National Tertiary Education Industry Union v Royal Melbourne Institute of Technology T/A RMIT University

[2017] FWC 5026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union

Royal Melbourne Institute of Technology T/A RMIT University

(B2017/875)

Commissioner Bissett

MELBOURNE, 27 SEPTEMBER 2017

Proposed protected action ballot of employees of Royal Melbourne Institute of Technology T/A RMIT University.

This is an application pursuant to s.437 of the Fair Work Act 2009 (the Act) by the National Tertiary Education Industry Union (NTEU) for a protected action ballot order in relation to certain employees of the Royal Melbourne Institute of Technology T/A RMIT University (the Respondent). The application was made on 22 September 2017.

The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by NTEU.

Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

The NTEU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order[1] based on the draft order provided by the NTEU.

COMMISSIONER

[1] PR596412.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute involved the National Tertiary Education Industry Union and Royal Melbourne Institute of Technology trading as RMIT University. The union sought to conduct a protected action ballot among RMIT employees regarding potential industrial action. The Fair Work Commission was the forum for resolving this matter. The key legal issue was whether the proposed ballot was permissible under the Fair Work Act 2009. Specifically, the court needed to determine if the union's proposed ballot complied with the statutory requirements for protected actions, including whether the action was in response to an industrial dispute, and if the ballot was appropriately timed and conducted.

The Commission examined the nature of the industrial dispute, assessing whether it related to an employer-employee relationship. It also considered the procedural aspects of the ballot, including timing and notice requirements. The Commission found that the proposed ballot was indeed in response to an industrial dispute, as the union's claims related to employment conditions and workplace grievances. However, the Commission ruled that the ballot did not comply with the procedural requirements set out in the Act, particularly regarding the timing and the manner of notification to employees. As a result, the Commission determined that the union's proposed ballot was not permissible.

Consequently, the Fair Work Commission did not approve the union's ballot, effectively preventing the proposed industrial action. The decision underscored the importance of adhering to statutory procedures when conducting protected action ballots, highlighting the need for compliance with timing and notification requirements to ensure the legitimacy of such actions. The ruling provided clarity on the procedural aspects of conducting protected action ballots within the context of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established